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MACK v. FEREBEE (09/17/64)

decided: September 17, 1964.

MACK
v.
FEREBEE, APPELLANT



Appeal from judgment of Court of Common Pleas No. 4 of Philadelphia County, June T., 1959, No. 986, in case of James Mack v. Charles Ferebee.

COUNSEL

Samuel M. Brodsky, for appellant.

Charles W. Bowser, for appellee.

Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Montgomery, J.

Author: Montgomery

[ 204 Pa. Super. Page 130]

In this action of trespass plaintiff-appellee recovered a verdict for personal injuries allegedly sustained when struck by defendant-appellant's automobile. This appeal is from the judgment entered on that verdict after the appellant's motion for judgment n.o.v. was denied. The sole issue before us is whether the evidence is sufficient to sustain the verdict.

There were no eyewitnesses to the actual happening of the accident. However, all of the evidence which was submitted to the jury must be read in the light most advantageous to the appellee, all conflicts therein must be resolved in his favor, and he must be given the benefit of every fact and inference of fact pertaining to the issues involved which reasonably may be deduced therefrom. Murphy v. Bargain City, U.S.A., Inc., 203 Pa. Superior Ct. 406, 201 A.2d 299 (1964).

The accident occurred on Friday, February 6, 1959, at about 11:30 a.m. on Broad Street in the City of Philadelphia near the intersection of Broad Street, Erie Avenue, and Germantown Avenue, a spacious and irregular intersection, with two sets of streetcar tracks running north and south on Broad Street and Germantown Avenue and two sets of streetcar tracks running east and west on Erie Avenue. (The part of Broad Street referred to is in fact an extension of Germantown Avenue as it crosses Erie Avenue and converges

[ 204 Pa. Super. Page 131]

    with Broad Street.) There were three concrete traffic islands in the wide expanse of Broad Street near the intersection aforesaid. The west rail of the southbound car track on Germantown Avenue paralleled one of those islands, being within two feet of it throughout its entire length of 62 feet. The island was 5 feet 6 inches in width. The entire intersection was controlled by traffic lights which were in operation at the time of the accident. A separate pedestrian traffic signal controlled pedestrian traffic crossing Germantown Avenue and Broad Street so that when motor traffic was moving on Erie Avenue pedestrians moved across Broad Street and Germantown Avenue. The day was clear and dry -- "daylight and sunny." Parking of automobiles was prohibited in this area and there is no evidence that any were parked there at the time of this accident.

Police officer John J. Mallon, who arrived at 12:10 p.m., found a spot of blood on the street very close to the south end of the island (alluded to as No. 3), which area was within a crosswalk for pedestrians. He also found appellant's 1956 Chrysler coupe automobile, with its windshield shattered on the right side, which was the side nearest to the island of cars traveling south on Broad Street. This was its only damage and there were no other marks on the automobile. At the police station at 1:15 p.m. Officer Mallon took the following verbal statement from appellant: "I was driving south on Germantown Avenue, straddling the southbound trolley rails, at about 20 miles per hour. As I approached Erie Avenue I was passing the safety island with the green light. As I neared the south end of the safety island I heard this bump. I then stopped and looked around and I saw this fellow lying in the street. I pulled my auto over to the south side of Erie, ran back, and saw this colored man bleeding from the head. The police arrived, and the firemen, and an

[ 204 Pa. Super. Page 132]

    emergency patrol arrived and took this man to the hospital. I did not see this man before the accident. My right side windshield ...


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